While conducting judiciary reform, Zelenskyy (mis)appoints corrupt judges

“It is not the first time that judicial reform has been launched in Ukraine. But it’s for the first time that it will be completed,” Zelenskyy said during his parliamentary speech on the 1st of November 2021. Indeed, in the summer of 2021, Zelenskyy proposed and Parliament adopted two bills defining the appointment and work of the Ethics Council — the key body in reforming Ukraine’s judiciary. The Ethics Council has started its work this month, November 2021, with results expected to come.

At the same time, in his latest decree of 1 November, Zelenskyy appointed 28 new judges, 21 of whom were recognized as corrupt or lacking integrity by a judicial reform watchdog. Whether this duplicity means critical incompetence of the president or is a calculated action remains unclear. But the facts stay as they are.

The problem

According to the law, the High Qualification Commission of Judges (HQCJ) selects and conducts qualification assessments of judges, recommending them for an appointment. The High Council of Justice (HCJ) makes final decisions on the appointment, punishment, or dismissal of a judge. Generally, after candidates pass an evaluation in the HQCJ successfully and are further recommended for appointment by HCJ, the president should appoint selected judges by his decree.

At the same time, a third body, Public Integrity Council (PIC), a judicial reform watchdog representing the NGO sector, has its voice and influence too. In case PIC determines that a judge lacks integrity and has a corrupt or dubious past, it can suspend his or her appointment. The HQCJ can outweigh the PIC decision only by 11 votes (68%).

What happened is that PIC determined that 21 out of 28 candidates didn’t meet integrity criteria to become judges. While this decision wasn’t outweighed by HQCJ, the president still appointed all 28 judges by his decree on 1 December, despite having the right to refuse HQCJ recommendations, referring to PIC.

27 judges were appointed to local first instance courts; one was assigned to the Economic Court of Donetsk Oblast.

Moreover, 2 reappointed judges are the infamous “Judges of Maidan” Andriy Kliuchnyk from Kyiv Sviatoshynskyi district court and Petro Zaruba from Kyiv Darnytskyi district court. In 2014, these judges sentenced Euromaidan activists on fictional charges, meaning they gave in to the government’s political pressure and illegally cracked down on the protest movement.

In 2018, the PIC concluded that judges Kliuchnyk and Zaruba did not meet the criteria of integrity and professional ethics. But recently, the HQCJ terminated the disciplinary proceedings against the judges due to the expiration of the term and recommended them for reappointment, even despite the PIC’s negative conclusion, the DEJURE watchdog reports.

Mykhailo Zhernakov, Head of Board at the DEJURE Foundation, thus summarized the faults of the 21 appointed judges who had a negative PIC evaluation:

“They did not declare their property – cars, apartments, non-residential premises; could not explain the origin or deliberately underestimated the value of their property; repeatedly visited the occupied territories; lied in declarations of integrity. All of them are now appointed and will judge us all for decades to come. This is an ‘update’ of our judicial system.”

Perspectives of the reform

Despite Zelenskyy’s decision to appoint these judges, the reform still has chances to succeed. It should be noted that these corrupt judges were appointed by the old board of HQCJ and HCJ.

At the same time, a new body, the Ethics Council, was introduced to assess the integrity of the candidates to the HCJ and its current members. Members of the Ethics Council were finally selected in October, after a long complicated procedure, and the council started its work on 1 December 2021. Importantly, half of the members of the Ethics Council are international experts.

The involvement of international experts in the evaluation of judges proved itself fruitful during the successful creation of The High Anti-Corruption Court of Ukraine in May 2019.

The Ethics Council is part of announced by Zelenskyy judiciary reform that officially started on 14 July 2021, when MPs finished adopting all the remaining crucial bills and amendments that rule out any sabotage in Ukraine’s grand task of clearing up corrupt judges from courts.

Namely, this is a bill on changing the High Council of Justice (HCJ), a key body of judicial governance. The bill also envisaged the creation of the Ethics Council, to start the transformation of the system from above, namely from the High Council of Justice.

“Historical event” as Ukraine finally adopts all legislation for judicial reform

The beginning of the work of the Ethics Council was welcomed by the G7 Ambassadors to Ukraine:

G7 Ambassadors welcome the start of work by the Ethics Council to the High Council of Justice on 1 December. We look forward to this joint Ukrainian-international body moving forward with its important work in reforming the HCJ. 1/2

— G7AmbReformUA (@G7AmbReformUA) December 3, 2021

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